Director of Public Prosecutions v Mahat
[2024] VCC 83
•8 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-00224
Indictment No. N11796084
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDIRAHMAN MAHAT |
---
JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 2 November 2023, 19 December 2023 | |
DATE OF SENTENCE: | 8 February. 2024 | |
CASE MAY BE CITED AS: | DPP v Mahat | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 83 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Armed robbery with a firearm; Category 2 offence; impaired mental functioning; violent death of brother while in custody; traumatic upbringing.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v R [2021] VSCA 169; Bugmy v R (2013) 249 CLR 571; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: Total effective sentence 3 years 3 months imprisonment reduced by 113 days to reflect Renzella time available to the Accused from other matter; non-parole period of 1 year 10 months imprisonment reduced by 113 days to reflect Renzella time available to the Accused; 508 days pre-sentence detention reckoned as served.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Nibbs at plea Mr S. Tan at sentence | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr M. Greener | Emma Turnbull Lawyers |
HER HONOUR:
Introduction
1Abdirahman Mahat, you have pleaded guilty to an indictment containing:
· One charge of armed robbery, which carries a maximum penalty of twenty‑five years' imprisonment.
· One charge of common assault, which carries a maximum penalty of five years' imprisonment.
· One charge of theft, which carries a maximum penalty of ten years' imprisonment.
· Two charges of possess a drug of dependence, namely cannabis and methylamphetamine, each of which carries a maximum penalty of twelve months' imprisonment in the circumstances of this case.
2Three related summary charges were uplifted into the hearing of the plea in mitigation of penalty, and you pleaded guilty to those charges, namely unlicensed driving, which carries a maximum penalty of 60 penalty units or six months imprisonment ; possess cartridge ammunition without licence, which carries a maximum penalty of 40 penalty units; and commit indictable offence on bail, which carries a maximum penalty of three months' imprisonment or 30 penalty units.
3The circumstances in which you came to commit those offences are set out in the Summary of Prosecution Opening on Plea, dated 1 November 2023 (Exhibit 'A'). The prosecution also relied upon the Reasons for Sentence of Judge McInerney of this court in the matter of DPP v Maniel & Anor.[1] (Exhibit B)
[1][2023] VCC 1073
4In addition to the matters relied on in argument, your counsel relied on:
· Plea submissions dated 17 December 2023 (Exhibit 1).
· Neuropsychological report of Dr Warrick Brewer dated 29 November 2023 (Exhibit 2).
· Psychological report of Ms Gina Cidona dated 30 September 2023 (Exhibit 3).
· Character reference of Zahra Hussein, dated 5 August 2023 (Exhibit 4).
5I have had careful regard to all exhibited documents, as well as to the matters addressed in the oral plea in mitigation of penalty.
Circumstances of your offending
6By way of background, the complainant in this matter is a gentleman named Pratap Singh, whom you had met in about December 2021 in the Melbourne CBD. At that time, you both exchanged your Snapchat information and, from time to time, would message each other via Snapchat. You suggested, over a period of time, that the two of you should meet up, however, no meet-up had been arranged.
7In April 2022, Mr Singh's father purchased a 2016 silver C250 Mercedes Benz and Mr Singh had exclusive use of that car most of the time. In May 2022, Mr Singh posted photos of the car as a Snapchat story and noted that you viewed that story. You continued to suggest that the two of you should meet up, and on 18 June 2022 you sent a message to Mr Singh sending him a particular mobile phone number and asking him to call you. On 3 August 2022, you again messaged Mr Singh, suggesting that the two of you meet at 12:40 in Ascot Road in Ascot Vale, but he did not agree to meet you on this, or any other, occasion.
8On 19 August 2022, which is the day of your offending, you messaged Mr Singh through Snapchat between 11.00 am and 12.00 pm, and using the call function on that app, you both agreed to have lunch together at an address in Ascot Road, Ascot Vale.
9Mr Singh drove his car to that address and on arrival he called you through Snapchat. You directed him to park in Union Street, Ascot Vale and you met him by his car.
10There, you asked Mr Singh to open the boot of his car to put something in there.
11You then sat in the passenger seat of his car and directed Mr Singh to drive to the Ascot Road address, and you told Mr Singh you would get lunch ordered to your house.
12The two of you left the car.
13You both entered the commission flats at the Ascot Road address and climbed three or four flights of stairs to reach an apartment, where you knocked on the door. You were let inside by a woman, and the two of you entered and sat on the couch. You made a phone call, and got up and walked around, then left the room and returned.
14At this point, your co-offender, Magud Maniel entered the room and you told Mr Singh that Mr Maniel was 'one of the biggest ganstas around'.
15You left the room and Mr Maniel asked Mr Singh where his phone, wallet and car keys were, and Mr Singh stared at him but did not reply. Mr Maniel then started punching Mr Singh with a closed fist to the face.
16You then entered the room holding a long black firearm with a wooden frame and pointed it at Mr Singh, while your co-offender was striking him. Mr Maniel demanded Mr Singh's mobile phone and after Mr Singh provided it, Mr Maniel demanded he entered his phone and online banking passwords. This is the offending referable to your Charge 1 that, on 19 August 2022 you and your co offender robbed Mr Singh of a mobile phone, wallet and car keys and at the time you had with you a firearm.
17Mr Maniel then transferred $1,900 to his own bank account and this transaction required a voice identification, which Mr Singh gave. Mr Maniel then logged the phone out of Mr Singh's Apple ID account. Bank records confirm the $1,900 transaction.
18Mr Maniel then told you that Mr Singh had a wallet and you demanded Mr Singh hand over his wallet, which he did, which is the continuation of your Charge 1.
19You then put the firearm down and hit Mr Singh in the face, which is some of the offending referable to your Charge 2 of common assault. You and your co‑offender then left and went into the kitchen area.
20Mr Singh got up and said, 'I’ve given you guys everything just let me go now'. You and your co-offender told Mr Singh that you knew where he lived and would shoot him if he told the police. Mr Singh said, 'I have to go' and left through the front door, and while in the hallway Mr Singh said to you, 'you guys have my wallet and phone … I really need my car, can I have the keys back'.
21You and your co-offender directed Mr Singh to an outdoor area and one of you asked Mr Singh where his car was, but he could not see the car from his location, and at that point you and Mr Maniel started hitting him again, and he fell to the ground and you and Mr Maniel hit and kicked him on the ground, which is the continuation of your Charge 2, common assault. One, or both of you, then told Mr Singh that, 'if you go snitch on us we will come and kill you because we know where you live'.
22Mr Singh got up, ran down about three flights of stairs to the street and towards a petrol station nearby, where he met the cashier and asked them to call the police. Mr Singh's face was visibly swollen and bleeding, and he was crying. The cashier called Triple 0 and handed the phone to Mr Singh, who reported the matter to police.
Arrest, interview, further investigation, commission of other offences
23Police arrived at the petrol station at around 1.45 pm, and Mr Singh reported that his car keys were missing, and his car was no longer where it had been parked. An ambulance attended and Mr Singh was transported to the Royal Melbourne Hospital, where he was diagnosed with a fracture to the zygoma and facial bruising.
24You were arrested at 2.45 pm, after you were stopped while driving the stolen Mercedes. This is the offending referable to your Charge 3 of theft of car, as well as to your summary offence of unlicensed driving.
25Police located items including the Mercedes Benz car key, 12 x .22 calibre ammunition rounds, which is the offending referable to your summary offence of possess cartridge ammunition; a zip-lock bag containing cannabis, which is the offending referable to your Charge 4 of possession of a drug of dependence; and a zip-lock bag containing crystal methylamphetamine, which is the offending referable to your Charge 5 of possession of a drug of dependence.
26You participated in a police interview at Fawkner police station starting at 6.14 pm, but answered 'no comment' to all questions asked, which is your right.
27Police later photographed Mr Singh's injuries and obtained his bank records and your co-offender's bank records. CCTV footage was also obtained, which showed the arrival of Mr Singh's car and Mr Singh running into the petrol station. Mr Singh's iPhone was later recovered from the purchaser, from a person who purchased the phone from Facebook Marketplace and then on-sold it.
Pleas of guilty and timing
28You were charged on the day of your offending and were remanded into custody. The matter proceeded in the indictable stream of the Magistrates' Court, with witnesses including Mr Singh cross-examined at committal, and you were committed to stand trial in this court on 20 February 2023. The matter was managed through a series of directions hearings and on 22 August 2023 I provided an indication as to the likely sentence that would be imposed if you pleaded guilty to the proceeding charges. You accepted this indication in the short period following, and the matter was then listed for plea in mitigation of penalty.
29This is a plea of guilty at a late-middle stage of the proceedings, after witnesses had been cross-examined at committal, but prior to the Court listing the matter for trial. By your plea, you have saved the witnesses the stress and inconvenience of needing to testify, and it is also of benefit and convenience to the justice system. I take the utilitarian benefit of your pleas into account in mitigation of sentence. Further, at the time your pleas were entered they were of special importance and significance, because they occurred in an era when the effects of the COVID-19 pandemic continued to linger upon the listing of trials, which is of significant utilitarian benefit in its own right.[2] And your pleas are accompanied by remorse and I also mitigate sentence on that basis, as well as in reflection of the utilitarian benefit of your pleas.
[2]Worboyes v R [2021] VSCA 169 at paragraph [39]
Personal circumstances
30You are now 30 years of age, and were 29 at the time of your offending. You migrated to Australia with your family in 2004, when you were aged about nine.
31You were born in Saudi Arabia to a family of Somalian heritage, then you lived in Somalia, where I am sad to say that you were exposed to brutal violence during the civil war and you witnessed your uncle being shot dead in front of the family.
32You were able to move to Australia to live with your father, who had already arrived and who sponsored the family's migration. You lived together in government housing in Fitzroy, and then relocated to government housing in Collingwood.
33At the age of 16 you returned with your family to live in Somalia following your paternal grandfather's death, and you remained there for five years before returning to Australia.
34Your mother worked as a cleaner until injuries forced her to stop working, and your father works as an Arabic teacher. Your parents share nine children, and your father has another wife, who lives overseas with their 10 children. I am pleased to say that your mother and sister are strong supports for you in the community and your mother has written me a letter, where she describes you as her 'loving son', a person to her who has always been kind and obedient.
35You attended a religious school in Saudi Arabia and did not attend school while living in Somalia. After you arrived in Australia, you initially enrolled in an English Language School, and then attended local schooling until you were expelled during Year 8 from Collingwood College, necessitating a move to Reservoir Secondary College, where you finished Year 10. Unfortunately, you report a history of behavioural issues during your schooling.
36You managed to complete high school while you were in Somalia before you returned in 2014.
37At this time you were aged about 20, and you worked in a variety of warehouse positions but unfortunately there was turbulence in your employment due to difficulties with your attendance associated with drug use. You have worked on and off ever since in warehousing jobs.
38Against a long and unfortunate background of substance use, in 2020 you were involved in a car accident while intoxicated where you crashed into a pole sustaining significant abdominal injuries, and you spent 20 days in hospital, including seven days in the ICU. Since 2020, your mental health has declined and your drug use has escalated.
39I regret to note that your younger brother was killed in a violent stabbing incident in October 2022 at the age of twenty-five. You were especially close to your late brother, and his unexpected and brutal death has had a devastating impact on you. This event unfortunately occurred after you had been remanded into custody on this matter, and you did not have the benefit of paying your respects at his funeral, and understandably you experience significant unresolved grief.
40At the time of your offending, you were consuming cannabis, alcohol, Xanax and Valium, on a daily basis.
41In this case, I have the benefit of a neuropsychological report, undertaken by Dr Brewer and a psychological assessment, undertaken by Gina Cidoni. As your counsel has helpfully summarised, at the age of 20 you were diagnosed with anxiety and depression. Unfortunately, you have not received treatments for these conditions, nor have you been prescribed medication.
42Dr Brewer has expressed a view that you experience the following neurodevelopmental conditions:
· mild Acquired Brain Injury
· Intellectual disability (moderately impaired)
· Complex Post-Traumatic Stress Disorder
· Substance Abuse Disorder (currently in remission in custody)
· Anxiety
· Depression and immature personality development.
43
I note and accept Dr Brewer's observation that, while you are in custody, you are impeded from engaging in substance abuse and you benefit from the structured prison environment. However, you remain untreated for your anxiety and depression and do not receive treatment for your acquired brain injury,
post-traumatic stress disorder and intellectual disability. Gina Cidoni also confirms the diagnosis of post-traumatic stress disorder and persistent depressive disorder.
44I share Ms Cidoni's view that your adverse childhood experiences have had a profound effect on your psychological development and those early traumas contributed to your vulnerability. Your substance use falls against a backdrop of disrupted education, expulsions from school and cognitive struggles.
45At the time of your offending, you had appeared before the Court on four prior occasions, including an appearance in March 2018 for traffick cannabis, possess heroin and possess controlled weapon, which resulted in fines with conviction.
46A court appearance in November 2018, on two charges of possess controlled weapon without excuse, and a charge of drive while authorisation suspended, resulted in a community correction order. You were placed on a further community correction order in July 2019 for possession of cannabis and amphetamine, and in September 2019 you were breached on the first community correction order that I have mentioned, which resulted in a conviction and fine. I understand that a subsequent conviction has consumed some of the pre‑sentence detention that otherwise would have been able to be taken into account on this charge. This is your first period of time in custody and I trust and infer that it has been of significant salutary effect on you. In other words, I am hoping it will make you think twice in the future.
Objective gravity of your offending; moral culpability
47Mr Mahat, armed robbery is a very serious offence. This is especially so where a firearm is used to terrorise the victim into handing over his property. In fact, you were the one who was carrying the firearm, and that is disgraceful behaviour. You were in company with another offender, you assaulted the victim as part of your offending, and by threatening him and terrorising him, you acquired a car of significant value that belonged to Mr Singh, as well as other items that were important to him. Mr Singh was left terrorised by your offending and was inconvenienced by the loss of his property. You committed this offence whilst on bail, which did not deter you from offending at the time.
48While you have difficulties with your intellectual functioning and your mental health, I know that you understand the difference between right and wrong and you also understand how serious and disgusting this offending is. You also understand that this offending never should have happened; it is very serious, and it cannot happen again. It cannot be what you stand for. Your long addiction to drugs is a background for your offending on the day, but it is not an excuse. I understand that you have completed a drug course while in prison, and you consider yourself committed to staying clean and sober upon your release, and this helps me to find that you understand how wrong your conduct is, and how it is important for me to tell you how it is serious and your behaviour is unacceptable and I say that on behalf of the community.
Relevant sentencing principles; sentencing submissions
49One of the relevant principles I must take into account is parity and I have read the sentencings remarks of Judge McInerney in relation to Mr Maniel's plea in mitigation of penalty. Mr Maniel also pleaded guilty to charges arising out of the conduct towards Mr Singh, and on a charge of armed robbery he was sentenced to two years' imprisonment. He, of course, was not the person holding the firearm, this was you. But Mr Maniel also pleaded guilty to a charge of intentionally causing injury, whereas you faced an offence of less objective seriousness, which is common assault. Mr Maniel's plea was heard together with three additional indictments for unrelated offending, and while I have regard to the parity principle of sentencing, there are differences between the cases which may lead to the imposition of different sentences.
50I understand the validity of your intellectual and mental-health diagnoses, having regard to your extreme childhood dysfunction, which has clearly left its mark upon you. In my view, your traumatic background mitigates the sentence which would otherwise be appropriate. Consistent with the reasoning of the High Court in Bugmy v R,[3] the effects of a traumatic childhood do not diminish over time and they are to be given full weight in the determination of appropriate sentences in every case.
[3](2013) 249 CLR 571
51Further, you are a gentleman who experiences impaired mental functioning, and in the exercise of my judicial discretion under the proper application of the principles in R v Verdins; R v Buckley; R v Vo,[4] I am prepared to provide a slight reduction in the weight we would ordinarily give to general deterrence as a purpose of sentencing. Another one of the purposes of sentencing is to deter others from engaging in this type of behaviour, but I am providing a little bit less weight to that factor. And I note that your failure to access treatment for your longstanding mental illnesses may increase the hardship experienced by you in custody, than it would a person who does not experience your impaired functioning. I also mitigate sentence on that basis. I must impose a sentence that punishes you and denounces your behaviour and makes you think twice about doing the same thing in the future.
[4](2007) 16 VR 269
52As I have mentioned, in my view your brother's sudden and tragic death in October 2022 is a factor I can take into account in showing mercy to you in the imposition of sentence.
53In relation to your prospects of rehabilitation, while Ms Cidoni reports that you are highly motivated to abstain from drugs, she, fairly in my view, assesses your risk of re-offending as moderate and she recommends further investigations be undertaken, including access to NDIS services. In my view, your prospects for re-offending will depend on a matter which is beyond my capacity to assess at the moment, which is whether you will succumb to your drug addiction once you return to your mother and sisters' loving care when you are eligible for parole. Their care and your commitment to your own rehabilitation are protective factors. Their care and your commitment to your own rehabilitation are protective factors which weigh in favour of your prospects for rehabilitation. As best as I can assess this largely unknown risk, I am prepared to infer that your prospects of rehabilitation are at least fair and will be significantly improved if you manage to abstain from drugs.
54The offence of armed robbery when a firearm is used is a category-2 offence, which requires the imposition of a sentence of imprisonment, excluding to be served in combination with a community correction order, unless exceptional circumstances apply. But this system does not apply where an accused experiences impaired mental functioning, which you do. In my view I am not strictly obliged to apply the category 2 regime as a result, and accordingly, I will move to assess and impose a proportionate sentence instead. Your counsel has contended that your impaired mental functioning in particular might enable me to avoid imposing a head sentence with a minimum period before parole eligibility. She has urged me, instead, to consider a combination sentence. The prosecution contends, as a matter of fact and law, that the appropriate sentence in all of the circumstances is a period involving a head sentence before parole eligibility.
55I have reflected very carefully on this submission and the related submission that I must have careful regard to the parsimony principle of sentencing, which I have done. In my view, the imposition of a combination sentence would result in a total effective sentence which is disproportionately lenient, having regard to all of the matters I must take into account. I therefore intend to impose a head sentence with a minimum period before parole eligibility, however I have structured the sentence carefully, to afford a very generous period of parole eligibility to foster your efforts at rehabilitation, and also in reflection of the unusual features of this case, including my desire to allow you some mercy in relation to the circumstances you have encountered while in custody.
Sentence
56On the charge of armed robbery you are convicted and sentenced to 3 years' imprisonment.
57On the charge of common assault, you are convicted and sentenced to 4 months' imprisonment, 1 month of which I order be served cumulatively upon the base sentence, which is the sentence on Charge 1.
58On the charge of theft, you are convicted and sentenced to 6 months' imprisonment, 2 months must be served cumulatively on the base and on other sentences.
59On two charges of possess drug of dependence, on each you are convicted to 1 week imprisonment to be served concurrently with other sentences.
60On the Charge of possess cartridge ammunition, you will be convicted and discharged.
61On the charge of commit indictable offence on bail, convicted and sentenced to 1 month to be served concurrently with other sentences.
62This gives a total effective sentence of 3 years 3 months' imprisonment, and I order that you serve a period of 1 year 10 months before parole eligibility.
63I reckon 508 days pre-sentence detention as served. That was the number that you gave us, Ms Greener, yes.
64In relation to the s6AAA declaration, having regard – now this is a comment rather than a reason - that the reason is going to be, had the accused proceeded to trial but been found guilty, I would have imposed a longer sentence. My comment is, I am unable to be more particular than that because of the factor which deserved some mercy in the imposition of the sentence that I did. The 6AAA is not as comfortably applied where there is a factor that doesn't lend itself to mathematical calculation. So the 6AAA will be a longer sentence.
65There was, as I recall, a forfeiture order and a disposal order. And because I don't have my laptop in front of me, I will just ask you please to read aloud what is to be forfeited and disposed, so that the accused knows what he might be agreeing to; or alternatively, what I might be ordering in spite of his lack of agreement.
66MR TAN: Yes, Your Honour. Your Honour in relation to the disposal, three items. Exhibit 2, a zip-lock bag containing cannabis. Second item, Exhibit 3, a zip-lock bag containing cannabis. Item 3, Exhibit 13, a zip-lock bag containing crystal substance.
67HER HONOUR: Yes. I can't imagine there would be opposition to my making that order in the circumstances. Now I will attach that to today's order.
68MR TAN: And in relation to the forfeiture, Your Honour.
69HER HONOUR: Yes.
70MR TAN: Two items. Exhibit 5, a zip-lock bag containing 12 .22 calibre ammunition. Exhibit 9, one sawn-off bolt action .22 rifle.
71HER HONOUR: Yes, and I propose to make those orders as well, without the opposition of the accused. Are there any other orders that I might need to make, any other issues that either of you may need to raise?
72MR TAN: No, Your Honour.
73MS GREENER: Your Honour, just for clarity, can I confirm if the Renzella time was taken into consideration? Or if it remains available? Just to avoid ambiguity.
74HER HONOUR: Yes. Now the Renzella time related to the 30 days. I had taken that into account, I've neglected to say that.
75MS GREENER: It was 104 days, Your Honour. The 30 days was the sentence that Mr Mahat served while he was remanded for this matter.
76HER HONOUR: Yes, yes.
77MS GREENER: The Renzella time was another matter where he was sentenced, 113 days sorry, my friend has alerted me - - -
78HER HONOUR: 113 - - -
79MS GREENER: - - - by Magistrate Porter.
80HER HONOUR: Yes.
81MS GREENER: Where a fine was imposed for matters where he had accrued those days.
82HER HONOUR: Yes, indeed. Thank you very much for that correction. So I will now add an addendum, because whilst I had regard to the net effect of the subsequent sentence, I had intended to have regard to that period which had - Mr Tan, I will just bring you up to speed - been the subject of earlier discussion and resolution in the hearing of the plea in mitigation of penalty. But I have not given effect to that additional 113 days in those numbers. So the way that I intend to make allowance for that Renzella time is by making an artificial reduction of the head sentence and the minimum period before parole eligibility, and I will include in a note that it had been my intention that the objective numbers be reduced by 113 days, to take into account the Renzella time available to the accused. So that way you will end up with an unusual number, both on the head sentence and on the minimum that is 113 days less than my original numbers that I have indicated. They were intended to be the numbers and I will now make the deduction. The note on my sentence will signal on the accused's record that the Renzella time has now been consumed and is no longer available to him.
83MS GREENER: Thank you, Your Honour.
84HER HONOUR: Yes. Now any opposition to that proposal, Mr Tan, before I draft the order?
85Now it occurs to me that once I have signed that order, if you fear that there is something that doesn't signal that intention on the order that you will receive presently within the hour or so, then you can let me know and that can be corrected under the Slip Rule.
86COUNSEL: Thank you, Your Honour.
87HER HONOUR: Is that acceptable, Mr Tan?
88MR TAN: Your Honour, I am just doing a quick calculation given your sentence.
89HER HONOUR: Yes, yes.
90MR TAN: Yes, there'd be no issue.
91HER HONOUR: So 39 months times - the sentence unit tells us what a year is and what a month is, so we might need to speak to the brain's trust in relation to how many days the three years three months is, less 113. But you will end up with an order, as opposed to the reasons for sentence, that has three years three months less 113 days on the top. One year 10 months less 113 days on the bottom. With a note indicating that my intention was initially to pass sentence as a three years 3 months with one year 10 months, and an artificial deduction has been calculated to afford the accused the benefit of Renzella time of 113 days in another matter.
92So that the order will be express and it will also contain a note indicating that I have had regard to that time.
93MS GREENER: Thank you, Your Honour.
94HER HONOUR: Okay, how does that sound. And then if there are any problems with settling the order we can have another go.
95MS GREENER: As Your Honour pleases.
96HER HONOUR: Thank you. Let's adjourn sine die please.
- - -
0
3
0